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Exhibit 10.13
EMPLOYMENT AGREEMENT
AGREEMENT made by and between ConAgra, Inc., a Delaware corporation
("Company"), and Bruce Rohde ("Executive") effective as of the 26th day of
August, 1996.
The Board of Directors of the Company ("Board") has determined that it is
in the best interests of the Company to obtain and retain the services of
Executive and to induce Executive to leave his current position in order to
accept a position with the Company. In order to accomplish this objective, the
Board has caused the Company to enter into this Agreement.
NOW, THEREFORE, it is agreed as follows:
1. Term of Employment. Executive's term of employment under this
Agreement shall commence on August 26, 1996 ("Effective Date") and
shall continue in accordance with the terms hereof until a
termination of Executive's employment.
2. Position and Duties.
2.1 Position. The Company employs Executive as President of the Company.
The Board has elected Executive as Vice Chairman of the Board and a
member of the Executive Committee of the Board. Executive shall have
the customary powers, responsibilities and authorities of presidents
of corporations of the size, type and nature of the Company.
Executive's office shall be at the principal executive offices of
the Company in Omaha, Nebraska.
2.2 Duties. Executive shall devote his full working time and efforts to
the performance of the duties outlined above. Executive may,
consistent with his duties hereunder, engage in charitable and
community affairs, manage his personal investments and (subject to
the prior approval of the Board) serve on the board of directors of
other companies.
3. Compensation.
3.1 Base Salary. The Company shall pay Executive a Base Salary ("Base
Salary") at the rate of $750,000 per annum. The base salary shall be
payable in accordance with the ordinary payroll practices of the
Company. Executive's rate of Base Salary shall be reviewed for
possible increases by the Board at least annually.
3.2 Annual Incentive Bonus. Executive shall be entitled to receive an
annual bonus under the Company's Executive Annual Incentive Plan
("Annual Bonus Plan"), or any successor plan subsequently available
to senior executive officers. Executive's target bonus opportunity
under the Annual Bonus Plan shall not be less than 80% of
Executive's Base Salary. The performance goals with respect to such
target bonus opportunity shall be established annually by the Board
on a basis consistent with the establishment of such performance
goals for other senior executive officers of the Company.
3.3 Long Term Senior Management Incentive Plan. Executive shall
participant in Company's Long Term Senior Management Incentive Plan
("LTSMIP"). Executive shall receive three units in the LTSMIP for
fiscal year 1997; provided, any payments to Executive for fiscal
1997 shall be prorated and based on Executive's employment from the
Effective Date to the end of the fiscal year. Executive's
participation in the LTSMIP shall increase (i) to four units for
fiscal year 1998 and (ii) to six units at such time as Executive
becomes Chief Executive Officer of ConAgra.
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Exhibit 10.13 (continued)
3.4 Restricted Stock Grant. Pursuant to the Company's 1995 Stock Plan,
the Human Resources Committee of the Board ("Committee") has granted
to Executive an award of 100,000 restricted shares of Company common
stock on the Effective Date. Such shares shall vest at the rate of
10% on the last day of each fiscal year of the Company, with the
first 10% vesting on the last day of fiscal 1997.
3.5 Stock Option Grant. Pursuant to the Company's 1995 Stock Plan, the
Committee has granted to Executive on the Effective Date options to
acquire 100,000 shares of Company common stock. The exercise price
of such options is $43.00 per share, the closing price of the
Company's common stock on the New York Stock Exchange on the date of
grant. Such options shall vest and become exercisable at the rate of
20% per year on the last day of each fiscal year of the Company,
with the first 20% becoming vested and exercisable on the last day
of fiscal 1997.
4. Other Benefits.
4.1 Employee Benefit Plans. The Company shall provide Executive with
coverage under all employee benefit programs, plans and practices,
in accordance with the terms thereof, which the Company makes
available to senior executive officers.
4.2 Pension Credit. At such time as Executive becomes Chief Executive
Officer of the Company, Executive shall be credited with sufficient
prior years of service for purposes of determining Executive's
benefit payable under the Company's supplemental pension and related
benefit plans so that Executive would have 25 years of service if
Executive remained employed by the Company until age 65.
4.3 Directors and Officers Liability Coverage. Executive shall be
entitled to the same coverage under the Company's directors and
officers liability insurance policies as is available to senior
executive officers and directors with the Company. In any event, the
Company shall indemnify and hold Executive harmless, to the fullest
extent permitted by the laws of the State of Delaware, from and
against all costs, charges and expenses (including reasonable
attorneys' fees) incurred or sustained in connection with any
action, suit or proceeding to which Executive or his legal
representatives may be made a party by reason of Executive's being
or having been a director or officer of the Company or any of its
affiliates. The provisions of this subparagraph shall survive the
termination of this Agreement for any reason.
4.4 Expenses. Executive is authorized to incur reasonable expenses in
carrying out his duties under this Agreement, including expenses for
travel and similar items related to such duties. The Company shall
reimburse Executive for all such expenses upon presentation by
Executive from time to time of an itemized account of such
expenditures.
5. Termination of Employment. The Company may terminate Executive's
employment at any time for any reason, and Executive may terminate
his employment at any time for Good Reason, subject to the terms of
this Section 5. For purposes of this Section 5, the following terms
shall have the following meanings:
(a) "Cause" shall be limited to (i) action by Executive involving
willful malfeasance in connection with his employment having a
material adverse effect on the Company, (ii) substantial and
continuing refusal by Executive in willful breach of this
Agreement to perform the duties ordinarily performed by an
executive occupying his position, which refusal has a material
adverse effect on the Company, or (iii) Executive being
convicted of a felony involving moral turpitude under the laws
of the United States or any state.
(b) "Good Reason" shall mean (i) the assignment to Executive of
duties materially
58
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Exhibit 10.13 (continued)
inconsistent with Executive's position or any removal of
Executive from, or failure to elect or reelect Executive to,
the position of President of the Company and Vice Chairman of
the Board of Directors (or other position as may be agreed to
by Executive), except in any case in connection with the
termination of Executive's employment for Cause, Permanent
Disability, death, or voluntary termination by Executive
without Good Reason, (ii) a reduction of Executive's Base
Salary or annual target bonus opportunity as in effect on the
Effective Date or as the same may be increased from time to
time, (iii) any material breach by the Company of any provision
of this Agreement, (iv) a requirement that Executive be based
at any office or location other than Omaha, Nebraska at any
time within four years following the Effective Date or (v) a
Change of Control of the Company occurs.
(c) "Change of Control" shall have the meaning provided in the
Conditional Employment Agreement between the Company and
Executive dated of even date herewith.
(d) "Permanent Disability" shall mean the permanent disability of
Executive as defined under the Company's Long-Term Disability
Plan.
5.1 Termination Upon Death or Permanent Disability. In the event
Executive's employment with the Company is terminated by reason of
Executive's death or Permanent Disability (i) all restrictions on
previously-granted restricted stock awards shall lapse and such
shares shall become fully vested, (ii) all options previously
granted to Executive in connection with the LTSMIP shall become
fully vested and exercisable during the remainder of the term of
such options, and all then vested options granted in accordance with
Section 3.5 above shall remain exercisable during the full term of
such options, (iii) all deferred and other amounts previously
accrued for the benefit of Executive shall be promptly paid to
Executive's estate or designated beneficiary (the items in (i), (ii)
and (iii) above are collectively referred to as the "Accrued
Benefits"), (iv) Executive and his dependents shall continue to
participate in the Company's employee benefit plans to the extent
provided in such plans with respect to the death or Permanent
Disability of senior executive officers of the Company, (v)
Executive's Base Salary shall be paid through the month of death or
Permanent Disability and (vi) Executive shall receive a benefit
under the Annual Bonus Plan and the LTSMIP prorated for the fiscal
year during which Executive died or became Permanently Disabled.
5.2 Termination Without Cause or for Good Reason. If the Company
terminates the employment of Executive without Cause, or if
Executive voluntarily terminates employment with Good Reason, (i)
Executive shall receive all Accrued Benefits, (ii) Executive and his
dependents shall continue to participate in the Company's medical
and dental programs for a period of 24 months at no cost to
Executive, (iii) Executive's Base Salary shall continue for a period
of 24 months following such termination, and (iv) in the event of a
termination for Good Reason on account of a Change of Control,
Executive shall receive the benefits described in the Conditional
Employment Agreement of even date herewith (reduced to the extent
the Base Salary benefit in (iii) above is duplicative of a similar
benefit under such Conditional Employment Agreement).
5.3 Termination With Cause or Without Good Reason. If the Company
terminates the employment of Executive with Cause, or if Executive
voluntarily terminates employment with the Company without Good
Reason, then (i) Executive shall be paid the Base Salary through the
month of termination, and (ii) Executive shall receive benefits, if
any, under Company plans in accordance with the terms of such plans.
5.4 Timing of Payments. All cash payments required hereunder following
the termination of Executive's employment shall be made within
fifteen days following such termination; provided, that cash
payments under the Annual Bonus Plan or the LTSMIP shall be made
following the end of the applicable fiscal year at the same time as
such payments are made to the Company's other
59
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Exhibit 10.13 (continued)
senior executive officers participating in such plans.
6. Nondisclosure of Confidential Information. Executive shall not,
without the prior written consent of the Company, disclose any
Company Confidential Information except (i) in the business of and
for the benefit of the Company, while employed by the Company, or
(ii) when required to do so by a court of competent jurisdiction, by
any administrative body or legislative body. "Confidential
Information" shall mean non-public information concerning the
Company's financial data, strategic business plans, product
development and other proprietary information, except for items
which have become publicly available information or are otherwise
known to the public. Confidential Information does not include
information the disclosure of which could not reasonably be expected
to adversely affect the business of the Company.
7. Noncompetition. From the Effective Date through a period ending two
years following the termination of the employment of Executive with
the Company for any reason, Executive shall not be an executive
officer, board member, 5% or greater owner or partner, or employee
of a food company with revenues over $1 billion. Executive agrees
that any breach of the covenants contained in this Section 7, and
the covenants contained in the preceding Section 6, will irreparably
injure the Company, and accordingly the Company may, in addition to
pursing any other remedies available at law or in equity, obtain an
injunction against Executive from any court having jurisdiction over
the matter, restraining any further violation of such provisions by
Executive.
Executive acknowledges and agrees that the provisions of this
Section 7 are reasonable and valid in duration and scope and in all
other respects. If any court determines that any provision of this
Section is unenforceable because of duration or scope of such
provision, such court shall have the power to reduce the scope or
duration of such provision, as the case may be, and, in its reduced
form, such provision shall then be enforceable.
8. Offsets. In the event of any breach of this Agreement, Executive
shall not be required to mitigate damages nor shall the payments due
Executive hereunder be reduced or offset by reason of any payments
Executive may receive from any other source.
9. Separability; Legal Fees. If any provision of this Agreement shall
be declared to be invalid or unenforceable, in whole or in part,
such invalidity or unenforceability shall not affect the remaining
provisions hereof which shall remain in full force and effect. In
addition, the Company shall pay to Executive as incurred all legal
and accounting fees and expenses incurred by Executive in seeking to
obtain or enforce any right or benefit provided by this Agreement or
any other compensation- related plan, agreement or arrangement of
the Company, unless Executive's claim is found by a court of
competent jurisdiction to have been frivolous.
10. Assignment. This Agreement shall be binding upon and inure to the
benefit of the heirs and representatives of Executive and the
assigns and successors of the Company, but neither this Agreement
nor any rights hereunder shall be assignable or otherwise subject to
hypothecation by Executive (except by will or by operation of the
laws of intestate succession) or the Company, except that the
Company may assign this Agreement to any successor (whether by
merger, purchase or otherwise) to all or substantially of the stock,
assets or businesses of the Company.
11. Amendment. This Agreement may only be amended by mutual written
agreement between the Company and Executive.
12. Notices. All notices or communications hereunder shall be in
writing, addressed as follows:
To the Company: ConAgra, Inc.
One ConAgra Drive
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Exhibit 10.13 (continued)
Omaha, Nebraska 68102
Attn: Secretary
To Executive: Bruce Rohde
843 South 96th Street
Omaha, Nebraska 68114
Any such notice or communication shall be sent certified or
registered mail, return receipt requested, postage prepaid,
addressed as above (or to such other address as such party may
designate in a notice duly delivered as described above), and the
actual date of mailing shall determine the date at which notice was
given.
13. Governing Law. This Agreement shall be construed, interpreted and
governed in accordance with the laws of Delaware without reference
to such state's rules relating to conflicts of law.
CONAGRA, INC.
By: /s/ Philip B. Fletcher
----------------------------
Chairman, Board of Directors
/s/ Bruce Rohde
----------------------------
Bruce Rohde
AGREEMENT
Agreement made effective this 26th day of August, 1996, by and between
ConAgra, Inc., a Delaware corporation, hereinafter referred to as "ConAgra", and
BRUCE ROHDE, hereinafter referred to as "Employee".
WHEREAS, the Board of Directors of ConAgra has determined that the
interests of ConAgra stockholders will be best served by assuring that all key
corporate executives of ConAgra will adhere to the policy of the Board of
Directors with respect to any event by which another entity would acquire
effective control of ConAgra, including but not limited to a tender offer, and
WHEREAS, the Board of Directors has also determined that it is in the best
interests of ConAgra stockholders to promote stability among key executives and
employees.
NOW, THEREFORE, it is agreed as follows:
1. Duties of Employee. Employee shall support the position of the Board
of Directors and the chief executive officer, and shall take any
action requested by the Board of Directors or the chief executive
officer with respect to any "Change of Control" (as defined at
Section 7 below) of ConAgra. If the Employee violates the provisions
of this Section, he shall forfeit any payments due to him under the
terms of this Agreement.
2. Employment Contract. If a Change of Control of ConAgra occurs, and
if at the initiation of the Change of Control attempt Employee is
then employed by ConAgra, ConAgra hereby agrees to continue the
employment of Employee for a period of three years from the date the
Change of Control effectively occurs. During said three year period,
Employee shall receive annual base and incentive compensation in an
amount not less than that specified in Section 3(a) below.
61
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Exhibit 10.13 (continued)
If Employee is Involuntarily Terminated (as defined at Section 7
below), at any time during the three year period, ConAgra shall pay
to Employee an amount equal to that which Employee would have
received pursuant to Section 3(a) below for the remainder of the
three year period, and shall also make the payments specified in
Sections 3(b) and 3(c) and, if applicable, any additional payments
specified in Section 5 below. In addition, in the event of
Involuntary Termination at any time, Employee shall receive payment
of the base and incentive compensation described in Section 3(a) for
one year. Any such termination payment of base and incentive
compensation shall be made to Employee in a lump sum within thirty
(30) days after termination.
If Employee voluntarily terminates his employment at any time during
the three year period, the Acquiror (as defined below), ConAgra, and
their subsidiaries will not be obligated to pay the Employee any
amount that might be due for the remainder of the three year period,
or for any termination pay; however, they shall make any additional
payments specified in Sections 3(b), 3(c) and 5 (if applicable)
below.
3. Description of Payments. The payments to be made to Employee are:
(a) Annual Base and Incentive Compensation. Employee shall receive
for the three year period described in Section 2 above an
annual amount equal to his current annual rate of compensation,
which current annual compensation shall be computed as follows:
twenty-six times the Employee's highest bi-weekly salary
payment received during the one year period ending immediately
prior to the Change of Control of ConAgra. In addition,
Employee shall receive for the three year period described in
Section 2 above (i) an amount of annual short-term incentive
equal to 80% of the annual rate of compensation described
above, and (ii) an amount equal to the highest annual long-term
compensation award made to Employee during the three fiscal
years immediately preceding such Change of Control (provided,
for fiscal year 1997, such amount shall be equal to the per
unit payout for fiscal 1996 under the ConAgra's Long-Term
Senior Management Incentive Plan multiplied by the number of
units allocated to Employee for fiscal 1997).
(b) Retirement Benefits. Employee shall receive an amount equal to
that which he would have received as retirement benefits under
the provisions of the ConAgra Pension Plan for Salaried
Employees ("Qualified Pension Plan") and the ConAgra Retirement
Income Savings Plan("CRISP") in effect immediately prior to the
Change of Control of ConAgra, had Employee continued his
employment until age 65 at the current annual rate of base and
short term incentive compensation as determined above.
(i) The supplemental pension benefit hereunder shall be
equal to the result of subtracting (x) the benefit the
Employee will receive under the Qualified Pension Plan
from (y) the pension benefit the Employee would obtain
under the Qualified Pension Plan if the Employee
remained in the employ of ConAgra until the Employee
attained age 65. The supplemental pension benefit is to
be computed assuming the Employee is to receive an
unreduced normal retirement pension benefit payable
beginning at the later of the date the Employee attains
age 60 or the date of the Employee's termination of
employment. If the Employee begins to receive his
supplemental pension benefit at a time other than as
described in the preceding sentence, an actuarial
adjustment shall be made to reflect such event.
(ii) The supplemental CRISP benefit shall be equal to the
amount computed, as follows:
A. The additional years of service that the Employee
would receive if his
62
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Exhibit 10.13 (continued)
or her employment was not terminated prior to
attaining age 65 is multiplied by the Employee's
current annual base and short term incentive
compensation (as described in Section 3(a)).
B. The result in A, immediately above, is multiplied
by 3%.
C. The result in B, immediately above, is present
valued to the date of the Employee's termination
of employment. The discount factor for such
present value shall be the discount factor used by
the Qualified Pension Plan at the time of such
termination of employment. The present value shall
be computed based on the assumption that the
result in B, immediately above, is paid ratably
(and monthly) over the additional years of service
of the Employee.
D. The present value amount determined pursuant to C,
immediately above, shall be funded pursuant to
Subsection (iv) of this Section 3(b).
(iii) The actuarial assumptions and methods used by this
Section 3(b) shall be the same as those used by the
Qualified Pension Plan. The timing of payment and the
form of the supplemental pension benefit under this
Section 3(b) shall be the same as elected by the
Employee under the Qualified Pension Plan and the timing
of payment and the form of the supplemental CRISP
benefit shall be the same as elected by the Employee
under CRISP;
(iv) The supplemental pension and CRISP benefits payable
under this Section 3(b) shall be unfunded until a
voluntary termination or Involuntary Termination
following a Change of Control. Within 60 days following
such a termination, the supplemental pension and CRISP
benefits shall be funded, in one lump sum payment,
through a trust in the form attached to the ConAgra
Supplemental Pension and CRISP Plan for Change of
Control and which trust is incorporated by reference.
The transferred amount for the supplemental CRISP
benefit shall be held in a separate account and
separately invested by the trustee. The amount
accumulated in such account shall be the sole source of
payment of the supplemental CRISP benefit, and shall be
the amount of the supplemental CRISP benefit hereunder.
The Acquiror, ConAgra and their subsidiaries shall make
up any supplemental pension benefit payments the
Employee does not receive under the trust, e.g., if the
funds in the trust are sufficient to make the payments
due to insufficient earnings in the trust. The trustee
of such trust shall be a national or state chartered
bank. If funding of the trust is not made within the
sixty day period described in this Subsection (iv) of
this Section 3(b), the Employee's supplemental pension
and CRISP benefits 3(b), the Employee's supplemental
pension and CRISP benefits shall then be equal to the
product of 150% multiplied by the amount of supplemental
pension and CRISP benefits described in this Section
3(b) above; provided, however, this increase in benefits
is not intended to remove or detract from the obligation
to fund the trust. The supplemental pension and CRISP
benefits shall not be paid from the assets of the
Qualified Pension Plan or CRISP.
(c) Additional Payment. If a Change of Control of ConAgra occurs,
Employee shall receive an amount equal to the excess, if any,
of the highest per share price offered (valued in U.S.
currency) by the successful Acquiror for ConAgra common stock
(which stock will then be treated for purposes of this
Agreement as converted into equivalent shares of such
Acquiror's or the surviving company's capital stock as of the
date of the Change of Control of ConAgra) over the closing per
share price of such Acquiror's or the surviving
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Exhibit 10.13 (continued)
company's ("Acquiror") stock quoted on an established
securities market (or if applicable, the closing bid price for
the Acquiror's stock that is quoted on a secondary market or
substantial equivalent thereof) on the date of termination (or
if the date of termination is not a business day, on the next
preceding business day), multiplied by the highest number of
shares of the Acquiror's capital stock owned by the Employee at
any time during the period beginning on the date of the Change
of Control of ConAgra and ending on the date of termination.
For purposes of this Section 3(c), the additional amount due
hereunder shall be computed as if Employee owned all of the
Acquiror's stock with respect to which Employee has an option
to purchase in connection with his employment with the
Acquiror, ConAgra or any of their subsidiaries. Said amount
shall be paid to Employee within ten days after termination. In
addition, if Employee sells any of the Acquiror's stock within
one year following said termination, Employee shall receive the
amount by which the closing price of such stock per share on
the date of termination (determined as aforesaid) exceeds the
per share actual net sales price of the Acquiror's stock on the
date of sale realized by Employee, multiplied by the number of
shares sold by Employee. Said amount shall be paid in
immediately available funds to Employee within ten days after
the sale. In addition, to the extent any of ConAgra's common
stock remains outstanding after a Change of Control, then
Employee shall receive additional amounts computed and payable
in a manner similar to that provided in this Section 3(c) for
Acquiror's stock owned, or subject to an option held, by
Employee. These provisions shall be appropriately modified or
adjusted to take into account the fact that the computations
pursuant to the preceding sentence are with respect to ConAgra
common stock and related options rather than the Acquiror's
capital stock and options related thereto. The computations and
payments under this Section 3(c) shall include appropriate
adjustments for any stock splits, stock dividends,
recapitalizations or similar share restructurings that may
occur from time to time.
4. Merger. ConAgra shall not merge, reorganize, consolidate or sell all
or substantially all of its assets, to or with any other corporation
until such corporation and its subsidiaries, if any, expressly
assume the duties of ConAgra set forth herein.
5. Certain Additional Payments by ConAgra.
(a) Anything in this Agreement to the contrary notwithstanding, in
the event it shall be determined that any payment or
distribution by ConAgra to or for the benefit of the Employee,
whether paid or payable or distributed or distributable
pursuant to the terms of this Agreement or otherwise (a
"Payment"), would be subject to the excise tax imposed by
Section 4999 of the Internal Revenue Code of 1986, as amended
(the "Code") or any interest or penalties with respect to such
excise tax (such excise tax, together with any such interest
and penalties, are hereinafter collectively referred to as the
"Excise Tax"), then the Employee shall be entitled to receive
an additional payment (a "Gross-Up Payment") in any amount such
that after payment by the Employee of all taxes (including any
interest or penalties imposed with respect to such taxes),
including any Excise Tax, imposed upon the Gross-Up Payment,
the Employee retains an amount of the Gross-Up Payment equal to
the Excise Tax imposed upon the Payments.
(b) Subject to the provisions of Subsection (c) below, all
determinations required to be made under this Section,
including whether a Gross-Up Payment is required and the amount
of such Gross-Up Payment, shall be made by the certified public
accounting firm then representing ConAgra (the "Accounting
Firm") which shall provide detailed supporting calculations
both to ConAgra and the Employee within 15 business days of the
date of termination, if applicable, or such earlier time as is
requested by ConAgra or Employee. If the Accounting Firm
determines that no Excise Tax is payable by the Employee, it
shall furnish the Employee with an opinion that he has
substantial authority not to report any
64
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Exhibit 10.13 (continued)
Excise Tax on his federal income tax return. Any determination
by the Accounting Firm shall be binding upon ConAgra and the
Employee. As a result of the uncertainty in the application of
Section 4999 of the Code at the time of the initial
determination by the Accounting Firm hereunder, it is possible
that Gross-Up Payments which will not have been made by ConAgra
should have been made ("Underpayment"), consistent with the
calculations required to be made hereunder. In the event that
ConAgra exhausts its remedies pursuant to Subsection (c) below
and the Employee thereafter is required to make a payment of
any Excise Tax, the Accounting Firm shall determine the amount
of the Underpayment that has occurred and any such Underpayment
shall be promptly paid by ConAgra to or for the benefit of the
Employee.
(c) The Employee shall notify ConAgra in writing of any claim by
the Internal Revenue Service that, if successful, would require
the payment by ConAgra of the Gross-Up Payment. Such
notification shall be given as soon as practicable but no later
than ten (10) business days after the Employee knows of such
claim and shall apprise ConAgra of the nature of such claim and
the date on which such claim is requested to be paid. The
Employee shall not pay such claim prior to the expiration of
the thirty-day (30 day) period following the date on which it
gives such notice to ConAgra (or such shorter period ending on
the date that any payment of taxes with respect to such claim
is due). If ConAgra notifies the Employee in writing prior to
the expiration of such period that it desires to contest such
claim, the Employee shall:
(i) give ConAgra any information reasonably requested by
ConAgra relating to such claim,
(ii) take such action in connection with contesting such
claim as ConAgra shall reasonably request in writing
from time to time, including, without limitation,
accepting legal representation with respect to such
claim by an attorney reasonably selected by ConAgra,
(iii) cooperate with ConAgra in good faith in order to
effectively contest such claim,
(iv) permit ConAgra to participate in any proceedings
relating to such claim; provided, however, that ConAgra
shall bear and pay directly all costs and expenses
(including additional interest and penalties) incurred
in connection with such contest and shall indemnify and
hold the Employee harmless, on an after-tax basis, for
any Excise Tax or income tax, including interest and
penalties with respect thereto, imposed as a result of
such representation and payment of costs and expenses.
Without limitation on the foregoing provisions of this
Subsection (c), ConAgra shall control all proceedings
taken in connection with such contest and, at its sole
option, may pursue or forego any and all administrative
appeals, proceedings, hearings and conferences with the
taxing authority in respect of such claim and may, at
its sole option, either direct the Employee to pay the
tax claimed and sue for a refund or contest the claim in
any permissible manner, and the Employee agrees to
prosecute such contest to a determination before any
administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as
ConAgra shall determine; provided, however, that if
ConAgra directs the Employee to pay such claim and sue
for a refund, ConAgra shall advance the amount of such
payment to the Employee, on an interest-free basis and
shall indemnify and hold the Employee harmless, on an
after-tax basis, from any Excise Tax or income tax,
including interest or penalties with respect thereto,
imposed with respect to such advance or with respect to
any imputed income with respect to such advance; and
further provided that any extension of the statute of
limitations relating to payment of taxes for the taxable
year of the Employee with respect to which such
contested amount is claimed to be due is
65
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Exhibit 10.13 (continued)
limited solely to such contested amount. Furthermore,
ConAgra's control of the contest shall be limited to
issues with respect to which a Gross-Up Payment would be
payable hereunder and the Employee shall be entitled to
settle or contest, as the case may be, any other issue
raised by the Internal Revenue Service or any other
taxing authority.
(d) If, after the receipt by the Employee of an amount
advanced by ConAgra pursuant to Subsection (c) above,
the Employee becomes entitled to receive any refund with
respect to such claim, the Employee shall (subject to
ConAgra's complying with the requirements of Subsection
(c)) promptly pay to ConAgra the amount of such refund
(together with any interest paid or credited thereon
after taxes applicable thereto). If, after the receipt
by the Employee of an amount advanced by ConAgra
pursuant to Subsection (c), a determination is made that
the Employee shall not be entitled to any refund with
respect to such claim and ConAgra does not notify the
Employee in writing of its intent to contest such denial
of refund prior to the expiration of thirty days after
such determination, then such advance shall be forgiven
and shall not be required to be repaid and the amount of
such advance shall offset, to the extent thereof, the
amount of Gross-Up Payment required to be paid.
6. Term and Binding Effect. This Agreement shall bind ConAgra and
Employee as long as Employee remains in the employ of ConAgra;
provided, however, ConAgra may terminate this Agreement at any time
by giving notice to Employee; and provided further, however, that
ConAgra may not terminate this Agreement at any time subsequent to
the announcement of an event that could result in a Change of
Control of ConAgra. This Agreement shall be binding upon the parties
hereto, their heirs, executors, administrators and successors.
7. Certain Definitions. The following definitions shall apply for the
purposes of this Agreement:
(a) Change of Control of ConAgra. The term "Change of Control"
shall mean:
(i) The acquisition (other than from ConAgra) by any person,
entity or "group", within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934 (the "Exchange Act"), (excluding, for this purpose,
ConAgra or its subsidiaries, or any employee benefit
plan of ConAgra or its subsidiaries, which acquires
beneficial ownership of voting securities of ConAgra) of
beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 30% or more of
either the then outstanding shares of common stock or
the combined voting power of ConAgra's then outstanding
voting securities entitled to vote generally in the
election of directors; or
(ii) Individuals who, as of the date hereof, constitute the
Board (as of the date hereof the "Incumbent Board")
cease for any reason to constitute at least a majority
of the Board, provided that any person becoming a
director subsequent to the date hereof whose election,
or nomination for election by ConAgra's shareholders,
was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be,
for purposes of this Agreement, considered as though
such person were a member of the Incumbent Board; or
(iii) Approval of the shareholders of ConAgra of a
reorganization, merger, consolidation, in each case,
with respect to which persons who were the shareholders
of ConAgra immediately prior to such reorganization,
merger or consolidation do not, immediately thereafter,
own more than 50% of the combined voting power entitled
to vote generally in the election of directors of
66
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Exhibit 10.13 (continued)
the reorganized, merged or consolidated company's then
outstanding voting securities, or a liquidation or
dissolution of ConAgra or of the sale of all or
substantially all of its assets.
(b) Involuntary Termination. The term "Involuntary Termination" or
any variation thereof shall mean either (i) the actual
involuntary termination of Employee's employment with the
Acquiror, ConAgra and their subsidiaries after a Change of
Control (with or without cause) or (ii) the constructive
involuntary termination of the Employee's employment with the
Acquiror, ConAgra and their subsidiaries after a Change of
Control. The term "constructive involuntary termination" shall
include (w) a reduction in the Employee's compensation
(including applicable fringe benefits); (x) a substantial
change in the location of the Employee's job without the
Employee's written consent; (y) the Employee's demotion or
diminution in the Employee's position, authority, duties or
responsibilities without the Employee's written consent; or (z)
the sale or disposition of the stock of Employee's immediate
employer, which was a subsidiary of the Acquiror, ConAgra, or
their other subsidiaries immediately prior to such sale or
disposition, provided Employee is not employed after such sale
or disposition by the Acquiror, ConAgra, or any of their
subsidiaries that are retained after such sale or disposition.
"Substantial change in location" means any location change in
excess of 35 miles from the location of the Employee's job with
ConAgra or its subsidiaries at the time of the Change of
Control of ConAgra.
8. Costs. All costs of litigation necessary for the Employee to defend
the validity of this contract are to be paid by ConAgra or its
successors or assigns.
IN WITNESS WHEREOF, the parties have executed this Agreement.
EMPLOYEE: CONAGRA, INC.
/s/ Bruce Rohde /s/ Philip B. Fletcher
- ----------------------- ----------------------------
BRUCE ROHDE Chairman, Board of Directors
ConAgra, Inc.
One ConAgra Drive
Omaha, NE 68102-5001
Phone: (402) 595-4000
February 16, 1998
Bruce Rohde
President and
Chief Executive Officer
ConAgra, Inc.
One ConAgra Drive
Omaha, Nebraska 68102-5001
Dear Bruce:
This letter will constitute an amendment of the terms and conditions of the
employment agreement between you and ConAgra dated August 26, 1996 (the
"Agreement"). First, the definition of "accrued benefits" in Section 5.1(ii),
applicable in part in connection with the events described in Sections 5.1 and
5.2, is amended to read as follows: all options previously granted to Executive
in connection with the LTSMIP shall become fully vested and
67
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Exhibit 10.13 (continued)
exercisable during the remainder of the term of such options, and all options
granted in accordance with Section 3.5 above shall become fully vested and
exercisable during the remainder of the term of such options. Second, pursuant
to Section 4.2 of the Agreement, you shall be credited with 92 months of
additional service for purposes of determining your benefits payable and for
vesting qualification under ConAgra's nonqualified pension plan and related
benefit plans. Third, in the event of a termination by ConAgra without Cause or
by you for Good Reason (as described in Section 5.2 of the Agreement), you may
elect to receive your benefits under ConAgra's nonqualified pension plan in a
lump sum.
Subject to the amendments referenced above, all of the other terms and
conditions of your Agreement are hereby ratified and affirmed. If you are in
agreement with the amendments set forth above, please so indicate by signing
below and returning an executed original of this letter to me for placement in
the files of the Human Resources Committee of ConAgra's Board of Directors.
Sincerely,
/s/ Philip B. Fletcher
-----------------------------
Philip B. Fletcher, Chairman
of the Board of Directors
Acknowledged and Agreed to:
/s/ Bruce Rohde
- ---------------------------
Bruce Rohde
68